Cohen v. Hahn

— Order unanimously reversed on the law without costs, determination confirmed and petition dismissed. Memorandum: It was error for the court to order a hearing de nova in Supreme Court on petitioner’s application for a use variance. The determination whether to grant a variance lies within the discretion of the zoning authorities and a reviewing court may not conduct a trial de nova (see, Matter of St. Onge v Donovan, 71 NY2d 507, 519; Thayer v Baybutt, 29 AD2d 486, 487-488, affd 24 NY2d 1018). The determination of the Zoning Board of Appeals is entitled to great deference and must be sustained if it has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441, 444-445). A review of the récord here indicates that there was a rational basis to support the determination of the Zoning Board denying petitioner’s application for a use variance. In applying for a use variance, an applicant must show that (1) the subject property cannot yield a reasonable return if used only for a purpose permitted in the zone; (2) that the problem with the applicant’s property is due to unique circumstances and not to the general condition in the neighborhood; and (3) that the use sought will not alter the essential character of the neighborhood (see, Matter of Village Bd. v Jarrold, 53 NY2d 254, 257). In order to establish that the property will not yield a reasonable return without the variance, an applicant "must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” (Matter of Village Bd. v Jarrold, supra, at 256; Bellanca v Gates, 97 AD2d 971, affd 61 NY2d 878). Petitioner failed to meet his burden of showing that he could not realize a reasonable rate of return by operating the subject property as a three-unit dwelling, the legal nonconforming use. Thus the Board was justified in denying a use variance. (Appeal from order of Supreme Court, Monroe County, Tillman, J. — art 78.) Present — Callahan, J. P., Denman, Boomer, Balio and Law-ton, JJ.